Essay: A Risk to the Courts When Judges Act Like Bloggers

With sometimes caustic or seemingly partisan remarks from the bench, more judges and Supreme Court justices are behaving like bloggers instead of neutral jurists, Jeffrey Rosen warns in an intriguing Politico essay.

There is a potential cost for fair and impartial courts when Supreme Court justices, addressing the constitutionality of the health care law, begin using metaphors about broccoli that once were employed by Internet pundits, contends the law professor at George Washington University:

“[W]hen when lower court judges and justices act like partisan legal pundits, faith in the neutrality of the courts can only decline.”

“Judges who act like bloggers and pundits are putting their own ideological agendas above the long-term institutional interests of the courts on which they serve.”

Rosen’s piece is not all criticism. After likening Justice Antonin Scalia’s recent bench remarks to the expressions of “a conservative shock jock,” he praises Chief Justice John Roberts’s deciding vote to uphold the central provision of the Affordable Care Act, thereby avoiding a partisan 5-4 ruling from the court.

“If Scalia is acting like a blogger on the Supreme Court, Roberts has given us a memorable example of what it means to be a judge,” Rosen writes.

Kansas Judge Steve Leben and Minnesota Judge Kevin Burke, the past and current presidents, respectively, of the American Judges Association, raised concerns about a “partisan tone” within the judiciary in a recent essay. You can learn more about their commentary from Gavel Grab, and you can read about controversy over Justice Scalia’s dissent in a high-profile case about Arizona’s immigration law by clicking here for Gavel Grab.

In other commentary on the Supreme Court, Dahlia Lithwick places Justice Roberts’s vote in context when she described, in a Slate essay, “the 2011 term [as] yet another festival of defections by assorted members of the so-called liberal wing” of the court. In fact, she writes, “the court’s left wing has always been more fractured than the right,” and the court’s “liberals tend to be more inclined to flop around, so much so that it no longer surprises anyone when it happens in a single case.”

In a Wall Street Journal op-ed, Clint Bolick addresses “The Supreme Court Stakes of 2012.” Robert Barnes has an article in the Washington Post asking, “Should Supreme Court Justices Google?”

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